March 31, 2012

That took me aback, because I'm so used to viewing SCOTUSblog — which I read all the time — as a very authoritative and relentlessly sober source of information about what's going on in the Supreme Court.

RUSH: There's a very, very left-wing blog called the SCOTUS blog, and the guy there is predicting 6-3 for the whole thing being found constitutional, 6-3. A lot of others have looked at his reasoning, "Yeah, you know what, I like that reasoning, it makes perfect sense to me. I think I'll sign on to that." If it happens, and if it happens the way the theory explains it, we don't have a court looking at the law anymore. We have a fully politicized third branch of government.... The chief justice, John Roberts, gets to decide who should write the opinion when he is in the majority. He assigns it. This theory holds that he'll write it himself....

The idea that this legislation is so important, so transformative that a 5-4 decision is not desirable by the chief and by a lot of people, that it would roil the country. A 5-4 decision is too narrow if they're gonna find the bill unconstitutional.... The theory is that Kennedy will go ahead and join the libs and make it 5-4 for total constitutionality, because he signaled that. Then Roberts, after having seen that, knows he can't stop it, so he joins the majority to make it 6-3 so that he gets to write the opinion. And in writing the opinion, Roberts will then limit the scope of the Obamacare bill to something like, yes, Congress can force us to buy health insurance, but nothing else....

Now, the theory that I just gave you comes from SCOTUS blog. It's run by a very left-leaning guy. A lot of people who are not liberals have run across this theory and it appeals to them. It's slowly but surely behind the scenes becoming conventional wisdom, and of course the left is glomming onto this, 'cause they love this possibility....

Now, don't worry too much about this theory, folks. The theory is becoming conventional wisdom and that means it's irrelevant and is wrong. It's advanced by the left. And, by the way, here's a quote from Senator Richard Blumenthal, former attorney general Connecticut, now Senator from Connecticut. The left is playing this "you will ruin your reputation" card. That's what this theory is about, the theory that justices will see it. They're trying to intimidate the court into ruling in favor of Obamacare....

So you guys on the court, you people on the court, you are going to destroy the court and your credibility and people won't obey if you do the right thing here and find this constitutional. So the effort to intimidate is under full swing.

Now, if Rush links to the SCOTUSblog item he's talking about, I can't find it over there. I went to SCOTUSblog to look for it myself, and I found something else that really shook my opinion that SCOTUSblog is a sober place that maintains a professional gloss:

Shoots itself in the mouth?!!! I thought good people were supposed to eschew murderous metaphors after the Tucson shootings. Remember that? The "new civility" stuff Obama lectured us about. Click my "civility bullshit" tag to brush up on the topic.

(Yeah, I called it "civility bullshit" from Day 1, because I always thought it was a one-sided effort to quiet critical voices and because I don't accept instruction on form of expression and because I think the demand that everyone speak in a sober manner further empowers those who already hold more than their share of power. As they say in China: "Can I say a curse word? No? Then I've got nothing to say.")

But back to Tom Goldstein in SCOTUSblog:

Opponents of the Affordable Care Act and the Obama Administration... did a tremendous job framing their constitutional argument against the statute to the public, the lawyers on their side were brilliant, and it appears that they had a receptive Supreme Court majority. It was an eleven on a scale of one to ten.

Now this. The RNC released an advertisement... with audio from the halting beginning to Don Verrilli’s oral argument on the individual mandate to make the point that (as the ad’s title says) “ObamaCare: It’s a tough sell.”

Here's the quite hilarious and brilliant ad:

Goldstein, like the Bloomberg News article he links, professes outrage over the way the ad plays Verrilli's drinking of ice water and saying "excuse me" twice. You hear it and you hear it again. Duh. The repetition of the sound bite is obvious, but Goldstein and Bloomberg call it "doctored" audio, as if they've uncovered something nefarious, and do a high dudgeon routine:

I’ve been in practice for seventeen years, and the blog has existed for ten, and this is the single most classless and misleading thing I’ve ever seen related to the Court. It is as if the RNC decided to take an incredibly serious and successful argument that has the chance to produce a pathbreaking legal victory for a conservative interpretation of the Constitution, drag it through the mud, and vomit on it. I would be shocked if a serious conservative lawyer would stand by the ad.

The Left has to label everything it believes as mainstream. Note: You are extremely unlikely to find anything close to being as vicious to Democrats who have been far more vicious to the SCOTUS over this.

I'm always amused when people who advocate no limits to sexual behavior, no limits to 'family' structure, no limits to gender definitions, no limits to aborting fetuses, no limits to government borrowing or spending, no limits to government power, no limits to personal freedom get all bothered because someone said something that was 'over the line.'

They've been regularly eating camels for decades, then some gnat flies in their mouth and they need the Heimlich maneuver.

I'm also a devoted SCOTUS blog reader. The guys who write it are experienced attorneys with active appellate practices at the S CT. Most of them (though not Goldstein, I think) held a SCT clerkship and were later in the SG's office. So their interest is mostly professional, not partisan, and reflects their differing views about (a) how to read and apply the constitution, and (b) what the justices are likely to find important in reaching their vote even if it involves considerations that won't show up in the opinions.

I doubt that Rush (or his audience) really cares much about what they said or what their motives were. His target is larger, and his approach has a bit of Alinsky-like 'ends justify the means' thing to it.

As for the RNC ad, Goldstein's comments reflect more the tendency of any small, in-bred group to protect its own. Verrilli is a certified, card-carrying member of the SCT bar -- he personifies it in his background, current position and likely future career. Goldstein certainly sees himself as part of the same elite crowd. So it's not political; it's just a 'let's defend Don' moment. Unfortunately it is likely to backfire badly with anyone not living in the same bubble.

Sober, perhaps, but the authors are clearly sympathetic with the left and Democrat-favored policies. That's not to say the prediction is wrong. I am anti-Obamacare, followed all of the run-up and debate over the issue at Volokh for the past two years, and know it could not have gone any better at oral argument, but I am pessimistic that the court will strike down any part of the law. The institutional pressure and practical effect of striking it down are too great to expect it will be done, even though it should be done.

This beast was created by Congress, and it must be killed by Congress.

I read SCOTUS Blog daily -- well, when the Court is in session, anyway -- but I don't find it centrist. A bit left-of-center. It's not Greenhouse or Mother Jones, but it has an underlying, somewhat liberal bias. That's easily enough discounted in the reading, though.

Whaaa? Was Limbaugh getting "pushback" from the Supremes? I missed that part. Really wish I hadn't--would love to have seen Ginsburg trying to push back TheBigRush. Would be like trying to get your hands around a bowlful of jelly. Except *definitely* not as jolly.

The court is going to overturn this monstosity but it won't be the great reversal the opponents want and it won't the great disaster the left fears. The court will find a very narrow technical reason that 7-2 or 8-1 can agree on and use the lack of severabilty to overturn the bill. This way they get to not deal with the myriad constitutional flaws the bill has and not deal with either expanding the powers or limiting the powers of the federal government. No doubt the court is aware of the polls and that this is a very contentious bill in the middle of an election year.

I suspect the court will focus on the bill's provision that creates a board that can set insurance rates and policy requirements which up to now has been set by the various states. Or some other obscure provision in the bill not widely mentioned. The court will leave it to the next congress and administration to craft a new bill, one that won't need to be passed in order to see what is in it. We will find out soon enough.

Verrilli is a certified, card-carrying member of the SCT bar . . . Goldstein certainly sees himself as part of the same elite crowd.____________

We're not all that elite.

As for the ad, I would agree that using the recordings of advocates arguing at the Supreme Court for partisan purposes is inappropriate. They are basically painting Verrilli as a political hack. But what the RNC ends up doing is showing themselves to be crass political hacks.

If you must attack ObamaCare (and you must), find some other tool.

Besides, the Republicans could stop ObamaCare in its tracks if they really wanted to, instead of Boehner, Ryan, et al. continuing to enable Obama by spending and extending the debt for him.

Regarding the reception of the Court's decision on Obamacare, I have a question for any and all:

Suppose the Court once again attempts a "middle ground" outcome:

1. Rule against the Administration on the tax question; say 8-1; Roberts assigns a liberal to draft this part.2. Strike down the mandate, say 5-4 or 6-3; if Sotomayor or Kagan comes along, one of them writes this part.3. Strike a middle-ground on severability, meaning it leaves most of the law in place, but strikes down several provisions deemed "linked" to the mandate; this as a result of several voting to strike down everything, some only the mandate, and the strike-some becomes the majority compromise. This is a partial win for the Administration. Kennedy writes this part.

4. Uphold the Medicare expansion, with Roberts writing the opinion, re-working the Dole precedent and attempting to say to Congress, "we mean it, there is a limit (but not this time)." Win for the Administration.

This would be a partial win, partial loss for the Administration.

What do you think the politics are of that?

What do you think the policy implications are?

Does an outcome like this enable the High Court to navigate between the Scylla of surrender and the Charybdis of partisanship?

BarrySanders20 said..."Sober, perhaps, but the authors are clearly sympathetic with the left and Democrat-favored policies."

Perhaps, and let's stipulate that. That's not why Rush is saying that they're far left. There are a lot of people on the right who perfectly mirror the myopia from which the pundit class was so indecorously shaken awake this week. They don't necessarily know conlaw terribly well, but they're as absolutely certain that this law is not only unconstitutional but obviously so as the Linda Greenhouses of the world were absolutely certain that this law is not only constitutional but obviously so. The right has rubbed its hands gleefully at the pundit class' panicked reaction, and rightly so, but the same myopia affects many pundits on the right. If you are absolutely convinced, beyond a whisper of a doubt, that this law is unconstitutional and obviously so, then the suggestion that it might be upheld--and that any justice other than those four (one of whom shouldn't even be hearing the case! Impeach Kagan!)--can only be partisan nonsense, because no reasonable person could ever believe such a thing, still less claim that the Supreme Court (again, not counting those four) would believe it. High voltage rhetoric masquerading as analysis is good cover for clueless myopia, as folks like Rush and Mark Levin prove daily.

Conservatives deserve a better class of pundit than these dipsticks. We deserve to be better-served than a bunch of people pretending that an echo chamber is helpful.

Father, I've had similar thoughts, so I wouldn't bet against you there. The Chief is going to want to find ways to turn down the heat--imagine Booker's toccata and fugue, but with an AIA prelude.

The politics of the case--I think liberals are off their rockers if they think they can campaign against the court for doing something that a large majority of the public support. The reason that the public hate Citizens United is because they don't like the result, but repeated polls have shown that the public doesn't like the mandate and they don't think it's constitutional. The only people to whom a campaign against the court based on such a decision would appeal are those who the campaign doesn't need to reach! It's a long shot, but I suppose they could campaign on the preexisting conditions thing, insofar as it's the most popular part of the bill. Nevertheless, it's so obvious why that stands or falls with the mandate (the least popular part of the bill) that it's hard to see them getting traction.

But I don't think it's necessary for the Court "to navigate between the Scylla of surrender and the Charybdis of partisanship?" I don't think they've been in that severe a position since Marry v. Madison.

Well, and maybe the New Deal.

And Brown v. Board of Education.....hmmm.

Nope. I still go back to Marbury. The pressure of partisanship is not what it was then for the Court. I think the justices will say what they believe the law is. That's the business they're in.

I don't see why the court couldn't do what it did in Brown: Decide the threshold question and the fundamental question about the mandate, and call it a day. Bring everyone back next term to talk about remedy once we know for sure that a remedy is needed. Unusual, to be sure, but not unprecedented.

If you want to see something really funny in this vein, go read Jonathan Chait's screed at The New Yorker. I'd naturally expect the boys at the SCOTUS blog to be less full throated in their baying, but Chait is really over the top.

"using the recordings of advocates arguing at the Supreme Court for partisan purposes is inappropriate."

Hmmm... I have no problem with it if there is substance. The Verilli bits used are edited for comic effect. I don't think it will sway anyone, just comforts those against Pelo/Reid care.By the way, disallowing video makes audio only seem natural, and audio by itself is much easier to edit for effect.But there are plenty of other substantive helpful soundbites from all this that could be used to highlight some of the poor reasoning being put forth to defend the act.It would be wise for the RNC to gather those and use them in the general campaign to highlight the importance of SCOTUS appointments. Want more Kagans? Wow! Wow!

They don't necessarily know conlaw terribly well, but they're as absolutely certain that this law is not only unconstitutional but obviously so

Conlaw is a useful guide to constitutionality when it examines the logical implications of the text and precedent, or when it balances competing principles in the text - not when it's just following precedent that's crazy as balls.

If the Court had decided some time ago that the Tenth Amendment was a grant of unlimited power to People Magazine, they could come up with a whole line of decisions that were logical consequences of that premise, and as we sat here waiting for the annual "50 Most Beautiful People/Entities that Get Waivers from Our Health Insurance Mandate" issue we'd see the same arguments about the importance of conlaw.

Basically, it's a disagreement about whether the Constitution means what it says, or whether it means what the Court says.

Strike down the mandate, say 5-4 or 6-3; if Sotomayor or Kagan comes along, one of them writes this part

While certainly plausible that Kagan and/or Sotomayor could join an otherwise majority to strike the individual mandate, so as to show their independence (what does it matter if it is 5-4 or 6-3 or 7-2?), I think that if they were to do so, that is as far as they would want to go. They would want to remain in the background and shadows. Having them write the opinion striking the mandate is way too much exposure for them.

Besides, they might join the majority only because, although they personally support the mandate, they don't feel strongly enough about it to join the minority. So any opinion they write might be rather weak.

I would not be surprised if Kennedy gets the plum prize of writing the opinion striking the mandate.

Roberts might throw Kagan or Sotomayor a bone on severability, though. If the individual mandate goes, guaranteed coverage and community rating go too, given that the government has said as much. But who wants to go through the mess of figuring out just how connected all of the other provisions are to these three, and which can stand alone?

That onerous prospect leads me to think that they would strike the whole thing. If not that, then remanding to the lower courts to deal with it. But that just means punting and having to deal with those headaches on a later day.

Roberts admires Warren's ability to get a unanimous decision in Brown. I think he will vote either way with Kennedy to avoid a 5-4 decision. He will also write the opinion and water it down as necessary to pick up an additional vote. He'd love to pick off Scalia on a narrow Commerce Clause justification or Sotomayor on a narrow interpretation that allows the law to stand in a narrowed way.

There is an awful lot of chatter out there from the left that maybe it would be to Obama's advantage if the law were struck down.

Perhaps such talk will be enough to send a green light to the libs on the Court -- "it's OK if the law goes down." If the left is willing to let it fall, and if on the merits the law is not all that essential anyway that they would be fine with it falling, then maybe the libs on the Court won't put up much of a fight, especially since they would have to tie themselves up in knots to justify upholding it.

I suspect that from Limbaugh's perspective SCOTUS blog is far left - I'd be curious how is brother David, who is a lawyer, regards it.

I read SCOTUS blog fairly regularly, but not daily, and generally find it on the left side of the mainstream of modern legal thought.

In a broader Constitutional perspective, taking political philosophy into account, my sense is that the writers there are close to clueless about the views of the Founders or the pre-New Deal Constitutional tradition. They know they only through Tribe and his epigoni.

The reason they're all bent out of shape is that they see the ad as attacking one of the guild members. Verilli may be on the opposite side of this issue but he's one of the SCOTUS inside guys so the other insiders object to him being embarrassed personally. Tough bananas, IMHO.

Bender:"""They are basically painting Verrilli as a political hack. But what the RNC ends up doing is showing themselves to be crass political hacks."""

Verrilli is the Solicitor General of the United States. That is, in theory, not supposed to be a political position. If Verrilli is *acting* like a political hack (a position which I can claim no knowlege of) then he SHOULD be pilloried for it. I see no evidence that he IS, but I follow events and ideas, not players (generally).

The RNC are SUPPOSED TO BE political hacks. It's in the freaken job description.

Of course, the DNC video ad on national TV displaying a Paul Ryan look-alike pushing an old lady in a wheel chair over a cliff was perfectly acceptable. That's because the lefties are so much better than the rest of us....and they mean oh-so well.

I'm missing the part where political satire is suddenly out of bounds.

Even the libruls were in high alarm over the SG's stuttering and ineffective defense of the tyranny of the left. As Rush very effectively put it, the SG was struggling to "defend the indefensible".